Question Period Note: Trans Mountain Expansion Project

• Through application of the Fisheries Act and the Species at Risk Act, we are working with Trans Mountain Corporation, the Canada Energy Regulator, Indigenous groups, and other partners to ensure that fish, marine mammals and their habitats are protected.
• Fisheries and Oceans Canada has issued four Fisheries Act authorizations for watercourse crossings and an authorization for the Westridge Marine Terminal.
• DFO is currently consulting with Indigenous groups on two additional Fisheries Act authorizations.
• We continue to engage with Indigenous groups to advance accommodation measures that focus on building capacity and long-term relationships, spill prevention, response capacity and cumulative effects to fish and fish habitat.
• We are addressing the recommendations of the Canada Energy Regulator, including implementing multiple initiatives intended to offset the impacts of project-related shipping to the Southern Resident Killer Whale.
Southern Resident Killer Whale
• Our government is committed to the protection of Canada’s resident killer whales and to the recovery of these populations.
• The Government has advanced initiatives to address the three key threats to the Southern Resident Killer Whale through some elements of three separate investments: the $1.59 billion Oceans Protection Plan, the $167.4 million Whales Initiative, and the $61.5 million in additional measures specific to the Southern Resident Killer Whale population.
• The Canada Energy Regulator made a recommendation to offset the increased underwater noise and strike risk posed to marine mammals and fish listed under the Species at Risk Act. The Government is currently implementing multiple initiatives intended to offset the impacts of project-related shipping to the Southern Resident Killer Whale.
Monitoring at the Westridge Marine Terminal
• The protection of aquatic ecosystems is a priority for DFO and we have been working with Trans Mountain Corporation to address fish mortality events that have occurred during construction at the Westridge Marine Terminal.
• The proponent has put in place mitigation measures that are currently allowing them to impact pile drive within the underwater noise thresholds specified in the Fisheries Act authorization.
• My department is committed to effectively monitoring construction at the Westridge Marine Terminal and is working collaboratively with the Indigenous Advisory and Monitoring Committee.

• The Trans Mountain Expansion Project (TMX) would expand the existing Trans Mountain pipeline system between Edmonton, Alberta, and Burnaby, British Columbia. It includes approximately 987 km of new pipeline, new and modified facilities, such as pump stations and tanks, and the reactivation of 193 km of existing pipeline. The project includes an expansion of the Westridge Marine Terminal to accommodate 34 tankers per month, up from the 5 that are currently loaded at the existing terminal.
• On July 2, 2020, the Supreme Court of Canada dismissed the three applications from the Coldwater Indian Band, Squamish Nation, and Tsleil-Waututh Nation for leave to appeal the February 4, 2020, decision by the Federal Court of Appeal, which dismissed their judicial review applications directed at the Governor in Council’s (GiC) decision to approve the TMX Project. As usual, the Supreme Court of Canada did not issue reasons for its leave decisions.
• On March 5, 2020, the Supreme Court of Canada dismissed applications for leave to appeal from Indigenous groups and environmental organizations seeking to challenge the GiC decision of the project in relation to the Species at Risk Act.
• Fish mortality events occurred on November 28 and December 11, 2019, resulting in the death of approximately 16 Pacific herring in the first event and approximately 200-300 Pacific herring during the second event. These fish likely died from exposure to elevated sound pressure levels during impact pile driving at the Westridge Marine Terminal. The proponent has maintained that they were in compliance with the conditions of the authorization. These events are currently under investigation by Fisheries and Oceans Canada (DFO)’s Conservation and Protection Branch.
• DFO has regulatory responsibilities under the Fisheries Act and Species at Risk Act for the protection of fish and fish habitat, including marine mammals. In collaboration with the proponent and Canada Energy Regulator, we are delivering regulatory review services for pipeline watercourse crossings. This will continue throughout the construction of the project.
• DFO issued a Fisheries Act authorization for the expansion of the Westridge Marine Terminal on September 12, 2019. On January 20, 2020, DFO issued an amended Fisheries Act authorization for a minor change of work that would not further impact fish and fish habitat.
• GiC approved the project on June 18, 2019. In approving the Project, the Government announced its intentions to address the 16 recommendations made by the National Energy Board (NEB; now the Canada Energy Regulator), as well as eight new accommodation measures to address gaps identified by the Federal Court of Appeal (FCA) decision. The Government is working with Indigenous communities to advance the development and implementation of accommodation measures and actions in response to the 16 recommendations.
• In its review of the project, the NEB found that there would be significant adverse effects related to increases in marine shipping assessed under the National Energy Board Act with respect to the Southern Resident killer whale (SRKW), Indigenous cultural use associated with the SRKW, and direct greenhouse gas emissions from marine vessels.
• The NEB made 16 recommendations to the GiC to avoid, mitigate or lessen effects of project-related marine shipping; the Board made these Recommendations to the GIC citing that the NEB does not have regulatory authority over marine shipping and the proponent does not have control of the vessels calling at the Westridge Marine Terminal.
• In Recommendation 5, the Board recommends that an Offset Program be implemented to offset the additional underwater noise and strike risk created by project-related marine vessels. The Board concludes that the offset approach could bring the significant adverse effects finding on SRKW to a finding of non-significant if and when project-related shipping effects have been effectively reduced to net-zero in each section of the shipping route.
• On February 22, 2019, the NEB released its Reconsideration report. The Board determined that the project is in the Canadian public interest and recommended the issuance of a Certificate of Public Convenience and Necessity, subject to 156 conditions imposed on the proponent.
• DFO and CCG were intervenors in the NEB review and provided specialist and expert information for the construction and operation of the marine terminal, including potential impacts from increased marine shipping.
• On September 26, 2018, the NEB commenced a Reconsideration hearing to address marine shipping concerns raised in the Federal Court of Appeal decision. DFO and CCG were intervenors in the reconsideration process and provided expert specialist advice to the NEB related to our mandates, including aquatic species at risk and marine spill response. The Department responded to numerous requests for information from the NEB and other hearing participants throughout the hearing.
• On August 30, 2018, the FCA quashed the GiC decision to approve the TMX Project. The Court found that Canada failed to fulfil the legal duty to consult Indigenous peoples but also that the NEB unjustifiably excluded project-related marine shipping in its review under the Canadian Environmental Assessment Act, 2012.
• In advance of the FCA decision, DFO had been working closely with the NEB on watercourse crossings where the NEB is of the view that works, undertakings or activities may cause serious harm to fish. Under the terms of our Memorandum of Understanding, DFO remains responsible for issuing any authorizations under the Fisheries Act.
• On May 29, 2018, the Government of Canada announced that it would buy the Trans Mountain pipeline and infrastructure related to the expansion project for $4.5 billion. The sale did not change the role of DFO in relation to the project.
• The NEB is responsible for reviewing proposed works, undertakings and activities at TMX watercourse crossings pursuant to a Memorandum of Understanding between DFO and the NEB on the cooperation and administration of the Fisheries Act and the Species at Risk Act.
• On November 29, 2016, the GIC approved the TMX project and issued an Order in Council approving the project subject to 157 conditions identified by the NEB.

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